Holmwood, J.:— These two appeals, Nos. 790 and 2024 of 1912, relate to a litigation for rent which has been going on since 1906. The proceedings by which they have now come before us illustrate in the most extraordinary way the case with which questions of limitation and fatal irregularities may escape the notice of several Benches in succession unless facts are properly brought to the notice of the Judges at the time applications are made.
The history of this case is as follows. A suit was brought for rent in 1906 which, was decided exparte. Towards the close of three years execution was taken out and the defendants applied for rehearing. The Munsif restored the suit. In the meantime another rent suit against the same defendants had been filed in the year 1910. The suits were consolidated and the Munsif decreed the suits with modifications. On appeal the lower Appellate Court reversed the decision of the Munsif and decreed the plaintiff's suit in full on the 20th December 1911. The decree was signed on the 22nd December 1911. The appeals were filed in this Court in the two cases on the 10th April 1912. Appeal No. 790 appears to have bee a filed on the last day with a copy of the judgment which covered both the cases, and of the decree in Appeal 790 which differed from the decree in the other suit. Appeal No. 2024 was filed without any copy of decree or judgment, and it is alleged that inasmuch as the copies might have taken less time in that case that it was not filed within the period of limitation. But this of course we cannot now go into, as we cannot assume that it would have taken any different time to get copies in this case to what it did in the other. On the 17th June 1912, the memorandum of appeal in 2024 was returned to the appellant with a note under Order XLI, rule 1, that there was no copy of the decree appealed from. A copy had been obtained on the 1st May 1912 and it was filed by the appellant on the 5th July 1912. Appeal 790 came up before a Bench of this Court under Order XLI, rule 11, on the 24th June 1912 and was summarily dismissed.
The copy of the decree, which was filed on the 5th July 1912, was accepted. There was no prayer for extension of time, although it was mentioned in a note that the copy was out of time. But to avoid the law of limitation, section 5 of the limitation act would have to be applied, and we find that no order stating that the Court was satisfied, as is required by that section, was recorded. Curiously enough Appeal 2024, which was an analogous appeal filed at the same time as 790 did not come on for hearing under Order XLI, rule 11, until the 2nd January 1913 before another Bench. That Bench admitted it without being told that it was barred by limitation and without any adjudication upon that point. Thereupon a review of the order of dismissal in Appeal 790 was filed before another Bench, that is the fourth Bench before which these cases had come and was granted on the 1st February 1913 without notice to the other side.
Now whether, as speaking for myself, I am able to hold that Order XLVII, rule 7, enables the respondent to take objection before us now in this appeal from the final decree or order passed or made in the suit, or whether he is entitled to invoke the inherent power of this Court as both of us are prepared to hold and, as was held in the case of Tikait Ajant Singh v. F.T Christien, it is clear that the non-compliance with rule 4 of Order XLVII renders the granting of ‘this application for review, which was prejudicial to the respondent, a nullity and that such an application could not be granted without previous notice. We have already shown that under Order XLI, rule 1, filing of the decree of the Appellate Court is imperative, and that the appeal, cannot be said to have been preferred until that decree is filed. Appeal 2024 is therefore clearly barred by limitation.
That being so, the preliminary objection must prevail and both the appeals must be dismissed. The question whether any second appeal lay on the matters found by the Subordinate Judge is one which we need not go into. The amounts are very small and in dismissing these appeals with costs, we think that a single hearing fee of one gold mohur is sufficient for both these, appeals.
Chapman, J.:— concurred.
G.S
Appeals dismissed.